PFAS Litigation Updates

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The world of PFAS litigation is quickly evolving. As regulatory scrutiny of these compounds increases, so, too, will the body of associated case law. From class actions to multidistrict litigation, this section will regularly highlight developments in PFAS-related litigation.

Content in this section does not reflect the opinion of Alston & Bird or its attorneys.

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Previous Issues

Sports Drink Manufacturer Can’t Avoid PFAS Suit

A California district court dismissed most—but not all—of a plaintiff’s claims in a false advertising suit against Prime Hydration, the manufacturer of a sports beverage. The plaintiff alleged that the beverage’s product label—which included claims such as “refresh, replenish, and refuel” and “250 mg BCAAs, B Vitamins, antioxidants, and 835 mg electrolytes”—was false and misleading because the label led consumers to believe that the product was healthy, despite third-party testing allegedly showing that the beverage contained “material levels of PFAS” that exceeded the EPA’s health advisory levels. For its part, the court determined that a reasonable consumer would not be misled by the “healthy” label claims and consequently dismissed the plaintiff’s claims for violations of California’s Unfair Competition Law, False Advertising Law, and Consumers Legal Remedies Act. However, the court determined that the plaintiff’s breach of implied warranty claim should survive, citing the testing data alleged, as well as the plaintiff’s allegations that the presence of PFAS compromised the product’s safety and fitness for consumption.

September 9, 2024 | Castillo v. Prime Hydration LLC, No. 3:23-cv-03885 (N.D. Cal.).

EPA Moves to Dismiss Lawsuit Challenging Failure to Regulate PFAS in Biosolids

The EPA has moved to dismiss a lawsuit brought by farmers from Texas and Maine who allege the agency has a nondiscretionary duty to regulate PFAS in sewage sludge under the Clean Water Act. They allege the EPA is also violating the Administrative Procedure Act by failing to regulate PFAS in this manner as well as arguing that the agency’s failure to identify the presence of certain PFAS is arbitrary and capricious. The EPA argues the Clean Water Act gives the agency discretion on whether to identify and regulate toxic pollutants in sewage sludge. In addition, the EPA contends the plaintiffs have not identified any Clean Water Act section that requires the EPA to regulate PFAS in the manner the plaintiffs urge, and the plaintiffs therefore failed to meet Clean Water Act citizen suit requirements.

September 9, 2024 | Farmer v. Environmental Protection Agency, No. 1:24-cv-01654 (D.D.C.) .

Plaintiffs Roll Out a New Lawsuit Against Chemical Manufacturers

A putative class action on behalf of consumers who have allegedly been exposed to PFAS found in carpets and rugs was filed in a Minnesota district court. The plaintiffs allege that PFAS confer stain-, soil-, and water-resistance qualities to carpets and rugs and that the defendants sold PFAS products to carpet companies for that purpose but without disclosing the toxicity of the products. The putative class is limited to those who purchased carpeting, had the carpeting installed before January 1, 2020, still own the building where the carpeting was installed, and have not removed the carpeting. The complaint includes a whopping 127 tort-related claims under various states’ laws.

August 30, 2024 | Peterson v. 3M Co., No. 0:24-cv-03497 (D. Minn.).

Seventh Circuit Remands PFAS Contamination Suit to State Court

The Seventh Circuit affirmed an Illinois district court order remanding the State of Illinois’s PFAS-contamination lawsuit against 3M back to state court. 3M originally removed the case to federal court based on the federal officer removal statute based on the belief that some of the contamination at issue came from PFAS-containing AFFF that 3M provided to the U.S. Army at the Rock Island Arsenal, which is located just 25 miles downstream from 3M’s Cordova Facility. While the Seventh Circuit acknowledged that 3M might have had a “colorable federal defense” justifying removal because of the “mixed PFAS contamination,” the state “clearly and unequivocally” conceded at oral argument that it would not seek relief for the mixed PFAS contamination, resulting in a lack of jurisdiction for the district court.

August 7, 2024 | Illinois ex rel. Raoul v. 3M Co., No. 23-3031 (7th Cir.).

Third Circuit Dismisses Chemical Company’s Attempt to Invalidate EPA Water Advisory

The Third Circuit dismissed Chemours’s legal challenge to the EPA’s health advisory for the PFAS chemical HFPO-DA. While Chemours argued that the health advisory violated the Administrative Procedure Act and the nondelegation doctrine, the Third Circuit did not reach those conclusions and instead dismissed the action for lack of subject-matter jurisdiction. For the health advisory to be subject to review under the Safe Drinking Water Act, as Chemours argued, the health advisory would have to qualify as a “final action.” And ultimately the Third Circuit reasoned that the health advisory, which is not enforceable and non-regulatory, was not a final action because it did not directly bring about legal consequences or impose requirements or prohibitions.

July 23, 2024 | Chemours Co. FC LLC v. United States EPA, No. 22-2287 (3rd Cir.).